Thursday, March 26, 2015
As we all know by now, the Supreme Court issued its decision yesterday in Young v. UPS, which resulted in a 6-3 victory for the plaintiff. Congratulations to friend-of-blog Sam Bagenstos, who was closely involved in the case and provided some thoughtful comments below. As Marcia notes in her summary of the case, the Court took a middle-of-the-ground approach here which surprised many of us. After a quick read of the decision, I am convinced that we will be talking about this case for awhile to come, and I thus wanted to highlight a few quick thoughts and (more importantly) attempt to spark a discussion in the comments section below.
First, the case reminds me tremendously of the Faragher/Ellerth decisions, where the Court again created a new standard in the employment discrimination context (perhaps to secure votes?). Those cases, though, seemed much more firmly grounded in the common law than the approach here, which the dissent accuses of being magically created. Second, though it seems like an almost throw-away part of the opinion, I was struck by the fact that the Court appears to definitively describe two ways of establishing intentional discrimination -- through circumstantial and direct evidence. Much was written following Reeves and Costa questioning the ongoing existence of this distinction, which now appears to be alive and well. Finally, for those of you that have not read Scalia's dissent yet -- it is a must read (for example, he accuses the majority of waving its "Supreme Wand" to "Poof!" achieve its "desired result" in this case). Scalia raises a number of fair concerns -- in particular, will the analysis of the case truly be limited to the PDA and has the Court conflated disparate impact and disparate treatment in reaching its result. This decision, combined with Ricci, truly does raise some questions about the future of disparate impact doctrine.
There is certainly enough in this case to fill a few symposium issues, and I am primarily interested in starting a discussion of this case here while it is still fresh in our minds. I am thus starting a thread below, and encourage a dialogue about the decision in the comments section. Feel free to share any thoughts, questions, disagreements, etc. in the forum below.
-- Joe Seiner